R. Pal, J.
1. The appeal had been preferred from a Judgment and order dated 6th April 1994 dismissing the writ application in which the writ petitioner challenged a notification issued under section 4 of the Land Acquisition Act, 1894.
2. Although several points had been raised by the appellant before the learned single Judge only two were pressed in appeal. The first was that the impugned notification had not been served in terms of section 4(1) of the Land Acquisition Act (referred to as the Act) and the second that the Impugned notification was defective, in that the public purpose had not been specified.
3. The notification under section 4 is dated 31st July 1981. The land sought to be acquired was 0.0650 Hectare (0.1607 of an acre) of premises No.10, Middleton Street, Calcutta (referred to as the premises). The notification said that the land was likely to be needed for a public purpose namely for the purpose of construction of office cum residential buildings" at the public expense,
4. There is an endorsement on the office copy of the notification to the following effect :
"Copy of this notification is hereby forwarded for publication at the following places for the General Information of the Public. __________________________________________________________________
1. The office notice board Shri Harinarayan Dutta 4.12.81
2. SPOT (SPOT NOTICE) Md. ISMAIL, Bawurchi 4.12.81
3. To, The Collecor, 24-Parganas, Calcutta Harinath Das
4. The Collector Stamps-Revenue, Calcutta. 11, Netaji Subhas Road. Calcutta. Shibnarayan Karmakar
5. The Commission Corporation of Calcutta, 5, 5.N. Banerjee Road, Calcutta for favour of displaying on his NOTICE BOARD for the general information of the public. Bhola Dhar
6. The Officer-in-charge, Park Street Police Station Park St., Calcutta, for favour of displaying on it's NOTICE BOARD for the general Information of the public.Sd/- illegible dt. 4.12.81" __________________________________________________________________
5. Below this is the signature of the First Land Acquisition Collector dated 4.12.81. Below that is an endorsement in Bengali which is signed by one Tarak Nath Dey on 7.12.81, the approximate translation of which is
"4.12.81 a copy of notice no. 1 was hung on the Notice Board of our office in the presence of an employee of the office.
Later on that date notice no.2 was served by affixation on the door of the premises in the presence of the named person.
Later on the same date notices 4, 5 and 6 were served by affixation on the notice board of the three offices in the presence of the named persons.
The above named statement is true to my knowledge."
6. The statement was affirmed before the Land Acquisition Collector on 9.12.81.
7. On the same date copies of the notice were issued to :
(1) Gour Chandra Pal, Shri Bata Krishto Dham 77, Beniatolla St., Calcutta.
(2) Shri G.B. Bansata, 32. Lenlln Saranl.
(3) Occupier's : H.K. Kanarama and Others.
8. The report in support of this notice has also been signed by Tarak Dey on 8.12.81. The report is in Bengali and appears to have been affirmed on 9.12.81 before the Land Acquisition Collector. This report mentions that the owner, Gour Chandra Pal is dead. Under the circumstances, "being unable to serve in the office, returned it". As far as notice no. 2 is concerned, it says :
"On going to the premises mentioned in the notice dated 04.12.81 at 32, Lenin Saranl, not finding anyone mentioned In the notice there, went to 32A, Lenin Sarani, 1st floor, on enquiry about owner of Notice No.2, came to know that there is an office of one owner. On going Inside the office and giving the notice to an employee, he having read the notice, took the notice inside the office. Then coming back said that Bada Babu and Law Clerk are reading it, saying so, he made me sit. But getting the notice typed, he said the person in whose name the notice is, is not present. In these circumstances instead of bringing back the Notice which was read and typed, I served the notice by hanging it on the main entrance of the office in the presence of Paresh Dhar."
9. The original service report of Tarak Dey bears an endorsement in English which reads :
"I have gone through the report of the P/S and found that the owner of shown at Sl. No. 1 of the notice is a dead person.
As regards Sl. No.2 (owner) service of the notice served by hanging which is not a proper manner in the case of U/s. 4.
As regards 3 service is done property Sd/- 0.12.81
This (?) may kindly see to it for future notice. Sd/- 9.12.81"
10. Do all these facts evidence compliance with section 4 of the Act? In our view, do not.
11. Section 4 of the Act as it stood before its amendment in 1984 reads as follows :
"Section 4--Publication of preliminary notification and powers of officers thereupon-
(1) Whenever it appears to the Provincial Government that land in any locality is likely to be needed for any public purpose, a notification to that effect shall be published in the official gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places In the said locality.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorised by State Government in this behalf, and for his servant and workmen-
To enter upon and survey and take levels of any land in such locality: To dig or bore into the sub-soil;
To do all other acts necessary to ascertain whether the land Is adopted for such purpose;
To set out the boundaries of the land proposed to be taken and the intended to be taken and the line of the work if any proposed to be made thereon;
To mark such levels, boundaries and line, by placing marks and cutting trenches;
and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to out down and clear away any part of any standing crops, fence or jungle.
Provided that no person shall enter into any building of upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so."
12. Supplementing these provisions are the executive instructions Issued by the Government of West Bengal which form part of the West Bengal Land Manual. Several guidelines which have been framed in the form of rules giving details of the procedure to be followed inter alia in connection with the service of notice under section 4(1). Para 19A(2) of these guidelines provides :
"(2) On the publication of the notification In the Calcutta Gazette, the Collector without waiting for the receipt of a copy of the notification or other order from Government shall cause public notice of the substance of the notification to be given at convenient places in the locality. This will ordinarily be done by affixing a copy of the notification at one or more place or places on or near the land proposed to be acquired and also at a conspicuous public place in the village or part of the town In which the land is situated. Copies of the notification shall also be posted In the Collector's Office, Sub-divisional Officer's officer and the office of the requiring officer.
Copies of the notification shall also be served on such persons as are at this stage known or believed to be Interested In the land proposed to be acquired. No elaborate or detailed enquiry need be made for this purpose- A local enquiry by such agency as the Collector may think fit. and an examination of (1) the Land Registration Registers, (2) Settlement Records and (3) the Municipal Assessment Register, whichever may be relevant to be particular case, will ordinarily be sufficient. "
13. According to the appellant there was fn fact no service of public notice at all. The appellant says that the report of Tarak Dey should not be believed because there was no reference to it in the first affidavit filed by the respondents, because it was inherently improbable that service was affected'on the same date at places which are separated from each other by several kilometers and stretching virtually from one end of Calcutta to the other and because of the discrepancy between the signatures of Abdul Ismall, the alleged occupier of the premises. It is further submitted that in any event the service said to have been effected was not at the locality within the meaning of section 4(1).
14. According to the respondents the object of giving notice was to make the person interested aware of the proposed acquisition. It is said that although notice was not required to be served personally under section 4(1) of the Act, the appellant was in fact personally served by affixation on his office premises and that he had knowledge of the acquisition.
15. In our view, assuming that the appellant had been served personally, this would not be service effected in the manner specified under section 4(1). It is a mandatory requirement and non-compliance would render the notification under section 4 Ineffective. The argument that the requirement under section 4(1) to give public notice at convenient places In the locality was only directory was rejected by the Supreme Curt In Khoobchand v. State of Rajasthan, . It was said :
"This statutory intention is, therefore, clear, namely, that the giving of public notice is mandatory. If so, the notification issued under section 4 without complying with the said mandatory direction would be void and the land acquisition proceeding taken pursuant thereto would be equally void."
16. The respondents' contention that the object of section 4(1) was to put person Interested on notice and that this had In any event been achieved in this case would not save the notification. A similar contention was also raised and was rejected by the Supreme Court in Collector v. Raja Ram Jalswal : on the ground not only that this would "whittle down the mandate of Legislation recognised by a long line of decision solely dependent upon the facts of a given case" but also on the ground that the argument :
"is predicated upon an assumption that the sole purpose behind publication of substance of notification in locality is to make requirements of section 5A functionally effective. The assumption as would be pointed out is not well founded."
17. It was said that unless the mandatory provisions of the statute laying down the legal requirement were compiled with the officers would lose the competence to take steps under section 4(2), This view has subsequently been followed in Syed Hussain Rasul Numa v. Union of India : .
18. The question whether notice under section 4(1) is also required to be personally served on the Interested person Is not and cannot be the issue here. The decisions cited by the respondents which deal with the question are inapposite. The case of State of Gujarat v. Panch of Nani Haman's Pole : was rendered In connection with a proceeding to acquire a structure in which all the tenants had been given Individual notices under section 4(1) of the Act. The Rules framed by the State of Gujarat under section 55 of the Act requires notices to be served on parties Interested. According to the Supreme Court this could not be Interpreted to mean that personal notice should be served on each and every Interested person and that It could not be contended that the absence of the notice would Invalidate the acquisition.
19. This view was emphasised in State of Maharastra v. Uma Shankar Raja Bhau : which also held that section 4(1) did not require service of personal notice and that the need was service in the locality and publication in the Gazette (see also : Sarfaraz Hussain v. State of Uttar Pradesh : ).
20. The only question, therefore, is whether there was publication at a convenient place in the locality and the fact that the appellant may have had knowledge of the notification (which is strongly disputed by the appellant) is immaterial.
21. The object of section 4(1) is that notice is to be given to the public. The method of giving such notice has been prescribed namely that it should be given at convenient places at the locality. The three elements which can be deducted from this is--first that the "convenience" must be the convenience of the public, therefore, the place must be at a public or conspicuous place, second that the public service must be *at the locality" and the third that the notices must be given at more than one such convenient place.
22. The learned single Judge has, in our opinion, erred in holding that publication by affixation on the premises was sufficient. The learned single Judge's finding that there was "spot notice" and that such "spot notice" was sufficient compliance with section 4(1) proceeds on the basis that the only object of the notice was to Inform the persons Interested for the purpose of section 5A. The view is not only contrary to the one expressed in Collector v. Ram Jalswal (supra) but also the Executive Guidelines make It clear that merely affixing a copy of the notification at the premises is not sufficient public notice.
23. Paragraph 19A(2) of the Executive Instructions dealing with service of notices under section 4(1) quoted above stipulates that there is compliance with the requirement of section 4(1) if the notification is affixed not only at one or more places on or near the land proposed to be acquired but also at a conspicuous public place in that part of the village/town in which the land is situated. Further, paragraph 19A(2) also provides for the posting of copies of the notification in the Collectors office or any other office as an additional requirement. In other words, service in the premises is not seen as service at a public place.
24. Having regard to this report of Tarak Dey by itself Is certainly not sufficient to establish that notice was served at convenient places in the locality as required under section 4(1). When the challenge was specifically thrown to the fact of service, it was essential that the process server should have affirmed an affidavit in support of his report. The explanation given by the respondents for the absence of such an affidavit is that Tarak Dey had retired from service in 1984. The explanation overlooks the fact that the writ petition was filed in 1981. Such an affidavit was particularly necessary in view of the contradictory statements in this regard. According to Tarak Dey's report he put up the notification on the notice board at the Park Street Police Station. The endorsement on the notification contains a request to the Officer-in-charge. Park Street Police Station to put up the notification on the Notice Board. The request had been acknowledged by a signature. But Tarak Dey says that he put up the notice himself. Even this is contradicted by the respondents. Two affidavits have been affirmed by the State respondents before the learned single Judge. The first affidavit was affirmed on 22nd March, 1985 and the second affidavit was affirmed on 5th September, 1991. In neither of them has it been stated that the notification was hung up on the notice board of the Park Street Police Station. In fact, In the second affidavit it was said that Tarak Dey had served the notification "to the Officer-in-Charge, Hare Street Police Station" and not In Park Street Police Station at all.
25. The other offices cannot be said to be at the locality. The office of the Collector is at Alipore several kilometers distant from the premises sought to be acquired as also the offices of the Collector of Stamps (Revenue) and the Corporation of Calcutta and the First Land Acquisition Collector. The only place in the locality if one uses a distance of a kilometer or two as being 'at the locality" would be the Park Street Police Station and as already seen the evidence to that effect Is contradictory.
26. The statutory requirements for effecting public service are required to be strictly observed. If the requirements are fulfilled the law presumes that the public has notice even though such knowledge may not be actual. The respondents having failed to establish that the requirements were compiled with, the notification cannot be given effect to.
27. The second objection raised by the appellant that the public purpose has not been specified is more fundamental. The reason is non-specification of the purpose would defeat one of the objects of giving public notice of the notification under section 4(1) viz. to allow any person Interested in the land which has been notified under section 4 sub-section (1) to object to the acquisition of the land within 30 days after the issue of notification, under section 5A. The objection is required to be made In writing to Collector and the Collector after giving an opportunity of being heard and making such further enquiry if any as he thinks necessary make a report to the appropriate Government containing his recommendation. The decision of the appropriate Government on the objection is final. [Vide section 5A(2)].
28. As already seen the notification merely mentioned that the acquisition was being made for construction of "office-cum-residential buildings". According to the respondents the acquisition was made at the request of the Government of Assam for expansion of Assam House which is situated in the plot of land adjacent to the premises to accommodate the offices of the Government of Assam. In the course of proceedings the State of Assam was added as a party to the proceedings. In the affidavit-in-opposition filed by the Government of Assam it wag said that the premises was required not only to meet the demands of the different departments of the State of Assam but also State Government undertakings to open up their departments or branches, show rooms and also to accommodation officials quarters and to cater to the need of the growing number of visitors In the Circuit House. But the notification Itself contains no reference either to the State of Assam or any of these objects. The respondents submitted that the fact that offices and residential constructions were to be made from the public fund was sufficient indication that the constructions were being made for a public purpose. It is further submitted that in any event, the notification would not be rendered Invalid by the failure to specify the purpose for which the premises were being acquired. The decisions of the Supreme Court in Babu Barkya Thakar v. State of Bombay : ; R.K. Agarwalla v. State of West Bengal :
and K.M. Chinal v. State of Gujarat :
have been relied on in this context.
29. According to the appellants the settled law was that the purpose had to be sufficiently indicated with particularity so that the objection to the notification may be a meaningful one. Rellanace has been placed on Munshi Singh v. Union of India : ; Aflatoon v. Lt. Governor of Delhi: and Madhya Pradesh Housing Board v. Md. Safi: .
30. The law appears to be as stated by the appellants. The earliest decision which has been cited in this context namely Babu Barkya Thakur v. State of Bombay related to the acquisition of land for the purposes of "the company viz., for factory buildings, etc. of M/s. Mukund Iron and Steel Works, Bombay". One of the submissions before the Supreme Court was that the lands sought to be acquired were not required for any public purpose. The Supreme Court noted that the Act made a clear distinction between acquisition of land needed for a public purpose and that for a company, as If land needed for a company is not also for a public purpose. However, it was also said that acquisition for a company might also be in substance for a public purpose. In these circumstances. It was not necessary to the validity of the land acquisition proceedings to state that the land which was being acquired for the company was needed for a public purpose. It is to be noted that the particulars of the company and the purpose for which the land was sought to be acquired for the company had been stated. Incidentialty, originally section 4(1) as it stood when the Supreme Court decided this case required only the public purpose to be stated in the notification. Now, subsequent to the amendment of section 4 in 1984 where land is required for a company, the notification has to contain a statement to that effect.
31. The second decision In chronological order is R.K. Agarwalla v. State of West Bengal (supra). In that case also the notification under section 4 stated that the acquisition of the land was being made "for the Bharat Sevashram Sangha for the purpose of construction of the Social Workers quarter, the students' home, publication department, the guest house and Panthasala". Amongst the various contentions' raised was that the acquisition was not to serve a public purpose but for the Sangha. The Supreme Court said that the word "public purpose' should be construed in a generic sense to include even a fraction of the community and the fact that the acquisition was primarily for a company would not affect the validity of the position". The case is not at all material to the question before us.
32. The last case cited by the respondents K.M. Chinai v. State of Gujarat (supra) is also irrelevant. In that case land was sought to be acquired for setting up a memorial to Mahatma Gandhi. It was submitted on behalf of the writ petitioners that the instrumentality which was to carry out the purpose not having been set out any notification under section 4, the notification was illegal. Supreme Court held that failure to specify the instrumentality which is to execute the public purpose does not affect the validity of the notification under section
4. There was no dispute in that case, as there is in the one before us, that the public purpose was not mentioned.
33. The decision of the Supreme Court In Babu Barkya Thakur's case was considered by the Supreme Court in Munshi Singh v. Union of India: where the Supreme Court clarified that Babu Barkya's case was not an authority for the proposition that a defect in the notification under section 4 was not fatal to the validity of the proceedings. The Supreme Court noted that unless the notification under section 4(1) while mentioning the public purpose gave some definite Indication or particulars of the said purpose which would enable the persons concerned to object effectively, section 5A would be rendered otiose. It was held that In the absence of any such specific or particular purpose being stated the objector cannot file any appropriate or cogent objections under section 5A which he has a right to do. It was accordingly held that because of the vagueness and indefiniteness of the public purpose stated in the notification under section 4(1) the writ petitioners were unable to object effectively and exercise their rights under section 5A and accordingly the entire acquisition proceeding was quashed.
34. This position was subsequently re-stated in Aflatoon v. Lt. Governor of Delhi (supra) where it was said:
"The wording of section 5A would make it further clear that all that is necessary to be specified in a notification under section 4 is that the land is needed for a public purpose. One reason for specification of the particular public purpose in the notification is to enable the person whose land is sought to be acquired to file objection under section 5A. Unless a person is told about the specific purpose of the acquisition. it may not be possible for him to file a meaningful objection against the acquisition under section 5A. This court has laid down that it is necessary to specify the particular public purpose In the notification for which the land Is needed or likely to be needed as, otherwise, the matters specified in sub-section (2) of section 4 cannot be carried out."
35. But in that case the writ application was in fact ultimately dismissed as the writ petitioners had not made a grievance that they could not effectively exercise their rights under section 5A at any stage before the matter came up in the Supreme Court
36. However, the most recent statement of the law has been made in Madhya Pradesh Housing Board v. Md. Safi and Ors. (supra). In that case the notification under section 4 stated the public purpose to be "residential". The Supreme Court said :
"The "public purpose" which has been mentioned in the schedule to the notification as "residential" is hopelessly vague and conveys no idea about the purpose of acquisition rendering the notification as Invalid in law. There is no indication as to what type of residential accommodation was proposed or for whom or any other details. The State cannot acquire the land of a citizen for building some residence for another, unless the same is in "public interest" or for the benefit of the "public" or an identifiable section thereof. In the absence of the details about the alleged "public purpose" for which the land was sought to be acquired, no one could comprehend as to why the land was being acquired and therefore was prevented from taking any further steps in the matter."
37. Following the decision in Munshi Singh v. Union of India (supra) the Supreme Court held that the notification under section 4(1) was vitiated for being vague. The Supreme Court also found that the non-specification was indicative of non-application of mind by the authorities while Issuing the notification.
38. The facts in the decision in this decision are substantially similar to those before us. Merely saying that the requisition was for "office-cum-resldentlal buildings" Is not specific. Nor does the statement that the construction was to be met out of the public fund make the purpose any more specific. The learned single Judge in his judgment followed Babu Barkya Thakur's case in coming to the conclusion that the non specification of the public purpose was not fatal and that the requirements of law would be satisfied if, in substance it was found on investigation that the land was needed for a public purpose. Apart from the fact that the ratio of the judgment In Babu Barkya Thakur's case was not as inferred by the learned single Judge, the learned single Judge was perhaps not made aware of the subsequent pronouncements of the Supreme Court which hold to the contrary.
We therefore allow the appeal and set aside of the learned single Judge and allow the writ application by quashing the Impugned notification under section 4(1) and all proceedings consequent thereto. There will be no order as to costs.
S.N. Bhattacharjee, J.
Stay prayed for and the same is refused.
Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.
39. Appeal allowed